What
is judicial activism? How does it work in modern society? In a modern democratic
State there are three instrumentalities constituting the State and executing its
functions. These are the executive, the legislature and the judiciary. Though
the judiciary is considered the weakest link since it has neither the power of
the purse nor the sword, yet in recent times its role has assumed considerable
importance because it seeks to prevent the excesses of the executive and the
legislature and acts for protection and enforcement of their rights and as a keeper
of their liberties.

In
a democratic form of government, it must be remembered, judges do not have the
last word, and in fact it is not appropriate that the authority of one organ of
democracy should be absolute and final. The decision even of the apex court can
be altered by ‘popular’ judgment of the legislature if it is found to thwart
legislative intent. Similarly, the court can void legislature if it is found to be
inconsistent with the Constitution. Thus, there is, so to say, an understanding
between each organ of democracy that its decision is not final and may not
prevail. Of course, there are those who like judges to believe that they alone
are the true oracles of the law and are the only bulwarks against abuse of power
by the other organs. Judges should guard against such flattery as it may tarnish
the image of the judge and the judiciary. I would underline the fact that courts
and legislatures are law-makers at work on the legal fabric of our society and
their respective roles should therefore be viewed as potentially ‘a fruitful
partnership’. It is well-known that the legislature often does not find
sufficient time for a threadbare discussion before a Bill is turned into an
enactment and therefore leaves gaps in the law, which gaps have to be filled by
the courts through the process of interpretation. In an ever-growing and fast-changing societal set-up, the burden falls on the judiciary to mould the law to
ensure its relevance in a changed scenario since amendment of the law may be a
time-consuming process. There is therefore a partnership between the two organs
and it would be wrong to assume, as some do, that the judiciary and the
legislature are at loggerheads; to so think is to fail to appreciate their
respective roles, albeit, in some situations their roles may conflict. Democracy
can function smoothly only if there is a healthy respect for each other’s
role.

There
are some who believe that the wide jurisdiction exercised by the courts in
matters of public interest transgresses the traditional doctrine of separation
of powers. They hold the view that the role of a judge is only to interpret and
declare the law and not make it. One of the possible reasons why there is this
conception about the role of the judiciary was highlighted by Mr. Justice Michel
Kirby from Australia, thus:

The
judges and the legal profession have … been less than fully frank about the
brilliant interaction which our system of law permits between the stable,
unelected, continuing elements of government (in the court…...) and the
democratic, creative but sometimes timorous and often unreliable elements of the
temporary changing scene of political government (represented in Parliament and
in the ministry). Out of the Interaction between these branches of Government
one hopes that a harmony will emerge. Ordinarily it does.

It
is a balancing act that all three instrumentalities of a State have to play in
order to see that they do not ‘unduly’ transgress on each other’s domain.
I use the word ‘unduly’, because the Constitution of India provides for a
system of check sand balances, not strict separation of powers, so that each
organ can to an extent enter the domain of the other.The topic chosen, namely,- Dimensions of Judicial Activism- is in fact
one such occasion when the judiciary steps out from its normal interpretative
role.

Simply
put, judicial activism depicts the pro-active role played by the judiciary in
ensuring that rights and liberties of citizens are protected. Through judicial
activism, the court moves beyond its normal role of a mere adjudicator of
disputes and becomes a player in the system of the country, laying down
principles and guidelines that the executive must carry out. In performing its
activist role the court is required to display fine balancing skills. While
protecting the fundamental human rights of the people, the judiciary must take
care to ensure that its orders are capable of execution, for no amount of
judicial activism is useful if its orders are incapable of execution; they then
remain “paper tigers” only. This places an awesome responsibility on the
court, which must ensure that its directions are effective. Admittedly, while it
is difficult to draw the line, one thing is certain- the court must not appear
to be speaking for effect only.Unless the court is sure that its order is capable of being enforced,
both in letter and spirit, it should be slow in passing such an order; for if it
does so, it will appear to be speaking for effect and publicity only. If it
passes orders that only attract media attention but are otherwise incapable of
execution, they will be ineffective and in the long run will harm the court’s
credibility, reputation and image. Certain flashy orders which are against the
establishment do make headlines and with the media blowing them up also draw
instant applause, but if they cannot be carried to their logical end, they end upcausing embarrassment. In the past, the Indian Supreme Court has at times
had to face the embarrassment of its orders and directions not being implemented
in a few cases. There are cases where the implementing authorities have pleaded
their inability to enforce the court’s order on account of various
difficulties faced at the ground level. This may give rise to a perception
amongst certain sections of the people that the court is becoming a paper tiger,
prone to emitting moralising roars, to which a deaf ear can be turned with
impunity on account of their inherently unenforceable nature.

But
the vitality of law as a living organism largely depends on the judge’s
ability to pour life into the law when the occasion demands by making new
inroads
in law. Common law could not have grown if judges had hesitated to enter the
arena of judicial activism. Would judicial review of
statute law have been
possible if Chief Justice Marshall had in Malbury v Madison confined
judiciary’s role to faithfullyinterpreting the cold print of legislative enactment? Would the reach of
Articles 14and
21 of our Constitution have been what it is today if judges had not treated them
expansible? No one can deny, with the changing social environment, the
interpretation of Constitutional and legislative provisions must also change.Homes says in ‘The Path of the Law’ (1920), ‘we do not realize how
large a part of our law is open to reconsideration upon a slight change in the
habit of the public mind.’ It is therefore obvious that judges at the higher
levels cannot afford to adopt a strict interpretationist approach. If that be
so, the question is whether the judge’s exuberance can be allowed to wander
like an unbridled horse? This question is often being asked in hushed voices in
different quarters since High Courts and more particularly our Supreme Court
judges are seen to be very prodigious. Lord Radcliffe in ‘The Law and its
Compass’ (1960) while leaning towards judicial creativity, pertinently
inquired, ‘Can an enlightened conception of
"public policy" provide what we want, a scale of measurement?' This
has always to be kept in mind by the judiciary.

The
most important quality of law in a free society is its power to command respect,
acceptance and
support from the community. This quality, which has been called ‘the power of
legitimacy’, is attached to those commands of established organs of government
that are perceived as flowing from the lawful exercise of their functions. In
engaging in constitutional adjudication, the Supreme Court thwarts powerful
interests, arouses the deepest of political emotions, often runs against the
executive, sets aside the will of the Legislature if found to be inconsistent
with the Constitution, and also issues dictates to the two wings of government.
Not being armed by either the purse or the sword, the court is uniquely
dependent upon the power of legitimacy of the compliance of its orders.
Therefore, to ensure the continuance of this legitimacy, the court should issue
directions only after assessing the ground realities and analysing the prospects
of their being successfully implemented. Only orders that are judicially
manageable ought to be passed so that their execution is guaranteed. It,
therefore, becomes necessary to inform the populace about the extremely delicate
nature of the judicial function. This would necessitate creating awareness among
politicians, public servants, and citizens and also require improvement of the
techniques by which law-principle and policy-are constantly reviewed and
refreshed in the courts. It would also mean greater candour within the legal
profession and amongst us about the judicial function involved.

One
of the most important features required for judicial activism, especially when
tackling problems that require a shake up of the State and central
administrative machinery, is the court’s fearlessness when issuing commands to
the government.For example, in the field of criminal law the judicial process has to be
very sensitive. Life and liberty are great values and when violated by State
officials or other political heavyweights, the court must have the strength,
courage and determination to intervene. Judges must never forget that in
democracy it is the rule of law that governs the State and they, as judges, are
the inherent defenders of the rule of law.

The
Indian Supreme Court is widely known forits thrust towards judicial activism. However, at the same time, it
should always be conscious about the range of its powers and should generally be
seen to exercise them with restraint within the constitutional parameters
without unduly treading onto the path of the executive and the legislature.Though, in recent times, there have been complaints that the judiciary in
general and the Supreme Court in particular has taken over the administration of
the country by entering into the domain of the executive, I, having been a part
of the judiciary, can safely say that except in a few stray cases, the court has
only intervened when it hasfound executive action wanting.

Before
getting into the thrust of my discussion on the role of judicial activism played
by the Indian Supreme Court, I would like to dwell on the experiences of the
judiciary in the United States and in Britain, both having played a major role
in the development of the judicial process the world over.

THE
U S EXPERIENCE

The
Supreme Court of the United States of America is the oldest Constitutional Court
in the world, having first assembled on 1. 2. 1790. At a very early stage of its
existence, in 1803, it bestowed upon itself the power of judicial review through
the epoch-making decision in the case of Marbury v. Madison. In what is now
considered a classic exposition of the law, Chief Justice Marshall, then stated:

It
is emphatically the province and duty of the judicial department to say what the
law is. Those who apply the rule to particular cases, must of necessity expound
and interpret that rule… A law repugnant to the Constitution is void; …
Courts as well as other departments are bound by that instrument.

Judicial
review has come to be defined as the power of a court to hold unconstitutional
and hence unenforceable any law, any official action, or ay other executive
action by a public official that it finds to be in conflict with the basic
law, that is, the Constitution. Several jurists, including former Chief Justice Warren Burger, believe that without the power of judicial review and a
Bill of
Rights, the United States Constitution could not have survived. It is the
concept of judicial review that has contributed, in a large measure, to the
dynamic attitude of American
judges.

Since
its very inception, charges have been leveled at the U SSupreme Court that its judges continuously indulge in judicial
legislation. In his classic text- 'The Nature of the Judicial Process' -Benjamin
Cardozo, who later served on the Supreme Court, accepted the fact that judges do
make law. However, he stated:

He
(the judge) legislates only between gaps. He fills the open spaces in the law.
How far he may go without traveling beyond the walls of the interstices cannot
be staked out for him on a chart. He must learn it for himself as he gains the
sense of fitness and proportion that comes with years of habitude in the
performance of an art.

The
U S Supreme Court played a prominent role in shaping American society
and at times even interpreted the provisions of the Constitution to lead
governmental policy in a manner which was diametrically opposite to the majority
public opinion of the time. In so upholding the Constitution, the court has to
withstand the stiffest of oppositions. Two illustrations may be cited here. In
the 1930’s, President F D Roosevelt initiated a legislative package called The New Deal. The measure was people-oriented and had a socialistic
flavour. The Supreme Court, by repeatedly holding in favour of the right
to property, struck down several of these legislations. This led to an uproar,
but the orders of the court were enforced. President Roosevelt then
resorted to the extreme measure of attempting to increase the strength of the court to enable him to pack it with his nominees but, had to retreat when the
Senate refused to endorse the measure. In the end, the retirement of several
judges allowed President Roosevelt to appoint his nominees to the court and
finally implement his programme. Again, between 1953 and 1969, under the
stewardship of Chief Justice Earl Warren, the court pronounced a number of
stirring decisions, which upheld the civil liberties of minorities and
disadvantaged sections, and expanded their rights in an unparalleled manner.
This included the famous decision in Brown v. Board of Education which
attracted the ire of the white majority when it held unconstitutional racial
segregation in public education:

It
is not easy to stand aloof and allow want of wisdom to prevail, to disregard
one’s own strongly held view of what is wise in the conduct of affairs. But it
is not the business of this Court to pronounce policy. It must observe a
fastidious regard for limitations on its own power, and this precludes the
Court’s giving effect to its own notions of what is wise or politic. That
self-restraint is of the essence in the observation of the judicial oath, for
the Constitution has not authorized the justices to sit in judgment on the
wisdom of what Congress and the executive branch do.

In
the language of the present generation of commentators of the U S judicial
process, judicial self-restraint is a term of praise, and judicial activism a
term of criticism.

THE
POSITION IN BRITAIN

In
Britain, the governing rule for the nature of the judicial process, for a
long time, was, as expressed by Sir Francis Bacon in the early 17th century:

'Judges
ought to remember that their office is … to interpret law, and not to make law.'

This
judicial tradition, established by Jeremy Bantam, who had a deep distrust of
judge-made law, stated that it is undemocratic for the non-elected judiciary to
act as law-makers; this function should be the prerogative of the Queen’s
ministers and the elected members in Parliament.

Being
steeped in this tradition, English judges developed an excessive liking for
their constitutionally imposed chains. In their eagerness to avoid the blasphemy
of judicial legislation, they proceeded to bind themselves in heavier chains of
their own making. This led to the adoption, by the judiciary, of the rule of
strict literal interpretation of the “plain and unambiguous” words of
statutes, disregarding the fact that in real life words rarely are plain and
unambiguous. This led to a number of absurd and inequitable results.

However,
since the early sixties, a new generation of English judges, spearheaded by the
likes of Lord Reid, Lord Denning and Lord Wilberforce, with their doctrine of
‘purposive interpretation’ breathed new life into English Administrative
Law, reviving and extending ancient principles of natural justice and fairness,
applying them to public authorities and to private bodies exercising public
power, and rejecting claims of unfettered administrative discretion.

In
his famous lecture (1972) on the judge as law-maker, Lord Reid, observed:

There
was a time when it was thought almost indecent to suggest that judges make
law-they only declare it. Those with a taste for fairy tales seem to have
thought that in some Aladdin’s cave there is hidden the Common Law in all its
splendour and that on a judge’s appointment there descends on him knowledge of
the magic words Open Sesame. Bad decisions are given when the judge muddles the
password and the wrong door opens. But we do not believe in fairy tales any
more.

This
new role of English judges was, predictably, met with fierce criticism and,
inevitably, there were cases where the judiciary seemed to have overextended
itself. However, efforts were undertaken by the judiciary itself to restrain its
actions. In the same lecture, Lord Reid observed that when judges act as
law-makers, they should ‘have regard to common sense, legal principles and
public policy in that order’. He said, they need:

To
know how ordinary people … think and live …. You must have mixed with all
kinds of people and got to know them … If we are to remain a democratic people
those who try to be guided by public opinion must go to the grass roots.

However,
in the absence of a written Constitution and a Bill of Rights, the scope of the
power of judicial review of English courts remains limited. In fact, even under
the recent law dealing with human rights, the English courts have jurisdiction
to declare any statute as not compatible with human rights but it has no power
to strike it down; it is then left to the Parliament to correct the aberration
in law to make it compatible. But if it decides otherwise, the court has to
accept the view of the Parliament.

THE
INDIAN EXPERIENCE

The
initial years of the Supreme Court ofIndia saw the adoption of an approach characterised by caution and
circumspection. Being steeped in the British tradition of limited judicial
review, the court generally adopted a pro-legislature stance. This is evident
from its rulings in case of A. K. Gopalan v. state of Madras (1950 SCR 88) where
the Supreme Court was called upon to consider adopting the procedural part of
the American concept of due process and insist that no persons should be
deprived of his life and personalliberty. Justice Das, in his separate but concurrent judgment, stated as
under:

I
find several insuperable objections to the introduction of the American Doctrine
of procedural due process of law into our Constitution. That doctrine can only
thrive and work where the legislature is subordinate to the judiciary in the
sense that the latter can sit in judgment over and review all acts of the
legislature. Such a doctrine can have no application to a field where the
legislature is supreme1. …. Although our Constitution has
imposed some limitations on the legislative authorities, yet subject to and
outside such limitations our Constitution has left our Parliament and the State
Legislature supreme in their respective legislative fields. In the main, subject
to limitations …. our Constitution has preferred the supremacy of the
Legislature to that of the Judiciary.2

(Notice
the sharp contrast from the US court’s approach in 1803 of Chief Justice
Marshall).

However,
the judges of the Supreme Court did not take long to make their presence felt
and began to actively pursue their functions assigned to them by the
Constitution. This approach led to a series of decisions scuttling reformative
legislation on the ground that the law interfered with the fundamental right to
hold property. The nation was then witness to a series of events where a
decision of the Supreme Court was followed by a legislation nullifying its
effect, followed by yet another decision reaffirming the earlier position, and
so on. The struggle between the two wings continued and, in fact, it was during
this time that the Supreme Court, while interpreting Article 388 of the
Constitution empowering Parliament to amend the Constitution, made its landmark
judgment in Keshavnanda Bharti case (AIR 1973 SC 1461) holdingthat the basic structure of the Constitution was not amendable, not even
by a legislation of the Parliament. During this era, the Legislature sought to
bring forth people-oriented socialistic measures which, when in conflict with
fundamental rights, particularly the right to acquire, hold and dispose of
property, were frustrated on the upholding of the challenge based on fundamental
rights by the Supreme Court. This led the then prime minister to describe court
judgments as roadblocks to reforms.

The
imposition of the Emergency in 1975 and the consequent suspension of fundamental
rights had a profound effect on almost every aspect of Indian life. The Supreme
Court too was affected and was at the receiving end of brickbats for having
delivered judgments that were perceived by many as being violative of the basic
human rights of Indian citizens. In the post-Emergency era, the apex court,
sensitised by the perpetration of large-scale atrocities during the Emergency,
once again donned an activist mantle. In a series of decisions, starting with
Maneka Gandhi v. Union of India, (AIR 1978 SC 597) the court widened the ambit
of constitutional provisions to enforce the human rights
of citizens and sought to bring the Indian law in conformity with the
global trends in human-rights jurisprudence. In 1979 by an amendment of the
Constitution the right to property was omitted and introduced in Article 300A,
thus ceasing to be a fundamental right. During the 1980’s and the early
90’s, the court moved beyond being a mere legal institution; its decisions had
tremendous social, political and economic ramifications. Time and again, it
interpreted Constitutional provisions and directed the Executive to comply with
the objective sought to be achieved by the Constitution. Simultaneously, it
introduced procedural innovations with a view to making itself more accessible
to disadvantaged sections of society giving rise to the phenomenon of Social
Action Litigation or Public Interest Litigation.

Public
Interest Litigation is important, because both in theory and in practice,
litigation in the realm of private law and public law is qualitatively
different. Of the many differences, the first is that for resolving a private
law controversy the court ensures that a person who invokes its jurisdiction has
sufficient interest, locus standi, in the subject-matter of the litigation. All
those who do not have an independent legal right to claim the remedy are
excluded. On the other hand, in public law litigation, the locus standi rule is
waived; an illegal act of commission or omission of a public authority, directed
against those who on account of economic constraints or illiteracy cannot knock
at the doors of justice, is viewed as potentially applicable to a class or group
insofar as its consequences are concerned. The assumption is that the potential
litigants, large in numbers, have an almost similar stake in the outcome of the
lawsuit pending before the court, its effect is not only in present but
also futuristic, though only those actually adversely affected by it will be
directly affected by the decision.

The
second difference is that private law litigation is primarily concerned with
determining specific questions of fact and law. Public law litigation, however,embraces wider questions of policy, both substantive and remedial. The
issues in the latter are drawn from a much larger social canvass.

A
third distinction is that in private law litigation, the adversarial system of
justice works and the task of collection of facts is generally left to the
parties, with the judge adopting a passive role. In a public interest proceeding
affecting the interests of numerous persons, the court takes an inquisitorial
route to assist in collection of facts, ensures representation of potential
litigants, and adopts a more active role to reach a just result.

In
fact, in India, it is Public Interest Litigants who have largely assisted the
courts in playing a proactive role and have enabled the courts to go into
various issues of exploitation of the poor and the needy, child education,
environmental pollution, mass injuries, factory pollution, drinking water
scarcity and the right to food and other basic needs, preservation of forests,
health of women and children, workers’ safety in factories, consumer justice,
etc. Public law jurisprudence necessitates the adoption of a different approach
by the judiciary, while grappling with issues of public importance. The court
looks to the provisions of the Constitution for guidance. Part IV of the
Constitution, which contains the Directive Principles of State Policy, is of
specific importance while dealing with public law litigation. Let me give an
example. Article 37 of the Indian Constitution states that the principles
enshrined in Part IV are fundamental for the governance of the country and the
State is duty-bond to implement them. In practice, however sufficient effort has
not been initiated to implement most of these principles. Article 45 is a case
in point. It
required the State to set up within ten years a system to provide free and
compulsory education to all children below 14 years. After more than thirty
years beyond the prescribed ten-year period, when the Supreme Court realised
that this objective remained unfulfilled, it considered the right to education
an element of the right to life guaranteed by Article 21 and directed its
compliance.

When
dereliction of constitutional obligations and gross violations of human rights
are brought to the notice of the court, it cannot be expected to indulge in
hairsplitting in an effort to maintain the “delicate balance” of power
between the different wings of government; it must act and act purposively and
positively to provide relief, real and not illusory, to the parties who seek
enforcement of their fundamental right. I am not for a moment suggesting that
judges should disregard the boundary separating the legitimate development of
the law by them from impermissible legislation. We must payheed to Justice Cardozo’s wise observation that the philosophy of
common law has at its heart, the philosophy of pragmatism. It’s thrust is
relative, not absolute. Judges must not throw to the winds the advantages of
consistency and uniformity to do justice in the particular case. Cardozo, J.
further states that justice, according to law means:

The
judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal
of beauty or of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinated to ‘the primordial necessity
of order in the social life’. Wide enough in all conscience is the field of
discretion that remains.

In
the conscientious exercise of that discretion by judges, lies the guarantee of
the proper governance of the country as a democratic nature of equal citizens
whose rights and freedoms are effectively protected by the rule of law.

The
judge’s task is particularly difficult in the field of public interest
litigation. That is because in a large number of such cases the material is
wanting and whatever little material is placed, is usually unfiltered. The
entire proceeding tends to become inquisitorial in character with the judge, or
judges, playing a pro-active, participatory role. The role of the judiciary is
extremely delicate in such cases because it must not appear to be playing to the
gallery or playinga role which may be described aspartisan. Great care must be taken to ensure that while the judge or
judges play a participatory role, they do not appear to be entering the arena or
give the impression of bias to the opposite party. It must also be realised that
the positionof
the opposite party in such cases is precarious, in that, it has to meet with
allegations, which are incomplete and often half-baked. In the absence of
properly drawn up pleadings, it is always difficult to counter the charge
levelled against the opposite party. Therefore, while in public interest
litigations the opposite party is always at the receiving end, a fair chance to
put forth its defence must be ensured to such a party, and the judge or judges
hearing such cases, not give the impression that they have prejudged that
issue. That is the caution which the judge or judges must administer unto
himself/themselves and exercise; otherwise the proceedings will lose direction
and will move in a rudderless or wayward manner.

It
is indeed true that, of late, many issues that can be described as
socio-political or religio-political or eco-political are brought to court. Some
of them do have far-reaching consequences and affect the social fabric of the
nation. Courts have, while trying to steer clear ofareas falling within the political thickets, not hesitated to exercise
jurisdiction in appropriate cases.The courts have taken up causes of the poor, the underprivileged and the
exploited, often acting on newspaper reports. I have already stated earlier that
the Supreme Court has directed the executive to take steps towards environmental
protection, rights of women and children, abolition of child labour in hazardous
industries and several other socially desirable issues.

JUSTICE
TO VICTIMS OF VIOLENCE

In
the context of communal riots, particularly where there is State involvement
through acts of commission or omission or deliberate failure of the police to
protect the targeted groups, many people ask me why the judiciary does not take
suo motu action against those whose utterances amount to penal offences even
though such utterances are bound to vitiate the peace and tranquility of the
country, whenotherwise
in other comparatively minor situations the courts play a pro-active role and
exercise jurisdiction. Why does the judiciary turn a Nelson’s eye to such
utterance? Why is the judiciary slow in taking action against those identified
by inquiry commissions for sparking and spreading violence through hate
speeches, e. g. the Sri Krishna Commission? Frankly, such questions leave me
benumbed. The systematic attacks on innocent citizens, be that by rioters or
terrorist groups with a view to ethnic cleansing or marginalisation of
vulnerable groups, need to be condemned in the strongest possible terms.The activities of such forces cause grave concern to the concept of the
rule of law. Unless they are put down with a strong hand this disease will
spread threatening the very fabric of our democracy. Granted that courts decide
only when there are actual cases, prompt action on the part of the judiciary in
such cases would serve as a strong deterrent and would help control such
behaviour in future. It is important to realise that a brooding sense of
injustice in the minds of the victim groups can stir emotions for revenge.
Prompt action by courts can calm such blood-boiling. If the victim group (s) can
be heard and can reasonably hope to get justice from courts, particularly when
the other two democratic organs have failed them, there would hardly be any
motivation for revenge. Judiciary is the last hope; it must act impartially and
fairly; it must also be so perceived; it must be just and must also be seen to
be just; prompt action on its part to act firmly, fairly and with a sense of
urgency for doing justice to the victims alone will enhance judicial
credibility. If judges are perceived to be guardians of one group or clique,
rather than be seen as dependable stewards of the legal order, the victim group
(s)will
despair and lose faith in the system. If courts are not perceived as symbols of
the law’s resoluteness, if judges exhibit despondency and susceptibility to
threats or betray partisan behaviour that would only encourage militancy. It is
therefore important that courts for the sake of their credibility act promptly
and fairly and through the instrumentality of justice apply the healing touch to
the wounds of victims of terror and hatred. It is all the more important that
those who indulge in whipping up emotions through hate speeches amounting to
penal offences under the laws of the country are immediately brought to book so
that the venom does not spread. There can be no doubt that the judiciary should
be in the forefront of humanity’s repudiation of such acts of terror
perpetrated on certain segments of the citizenry. In fact, judges by their oath
are obliged to do so. Courts should not hesitate to use their power to do
justice to the victims of violence and thereby strike at the very roots of
mischief-mongering. If we do not act now, our democracy will be eroded and
eventually lost. I say this because if you were to cast your glance all over the
globe you will not find a single country where genuine democracy has survived
with a theocratic form of governance.Beware, the Constitution will be reduced to a parchment, it may exist on
paper but its soul and spirit will disappear. We must jointly make every
endeavour to save the spirit of our Constitution and our democracy.We can ill-afford to get swayedby emotional outbursts or rhetoric. This is a great responsibility on the
shoulders of the Indian judiciary which I hope it will discharge in the larger
interest of democracy and the country. g